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Comment by 1024core | Hacker News Reader

> Trump doesn't care about homosexuality (literally when asked what he would do if he found out an employee was gay he said "it makes no difference").

Yeah, right. You do know that Trump wants to appoint clones of Scalia to the Supreme Court, right[1]? The same Scalia who was opposed to gay marriage and gay rights? [2]

> I'm a gay guy who wants to legally marry and I'm not going to vote for someone who has denied me my rights.

... but you don't mind supporting someone who will continue to deny you your rights?

[1] http://www.advocate.com/election/2016/10/10/donald-trump-vow...

[2] http://www.towleroad.com/2016/02/302540/

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>Yeah, right. You do know that Trump wants to appoint clones of Scalia to the Supreme Court, right[1]? The same Scalia who was opposed to gay marriage and gay rights? [2]

Scalia's arguments weren't completely unreasonable. His dissent essentially said that the matter should have been solved by a constitutional amendment.

I think the best possible solution would have been to introduce an amendment that clearly states the federal government has no authority to regulate marriage while also clearly stating that the right to pursue a marriage to the consenting adult of our choice falls under the protection of "inalienable rights", thus stripping from the states the ability to individually pass laws oppressing homosexuals.

However, I think that the passing of such an amendment was and is unlikely. So, while I see Scalia's point on that particular issue, I don't necessarily think the rest of the supreme court had much of a choice.

There are many other decisions where I disagreed with Scalia, but I think there's something to be said for maintaining a somewhat balanced supreme court (not that I'm willing to vote for Trump to make that happen).

The supreme court was designed in a way that was intended to keep the justices free from the influence of politics. However, it has pretty much always been a political competition.

> His dissent essentially said that the matter should have been solved by a constitutional amendment.

Why should a fundamental right require a constitutional amendment? IMHO, this is a cop-out for Scalia: he knows how hard it is to put together a constitutional amendment, so instead of just saying "no" and appearing like a bigot, he punted the question as a constitutional amendment. I'm sorry, but I don't buy his argument.

>Why should a fundamental right require a constitutional amendment? IMHO, this is a cop-out for Scalia: he knows how hard it is to put together a constitutional amendment, so instead of just saying "no" and appearing like a bigot, he punted the question as a constitutional amendment. I'm sorry, but I don't buy his argument.

Because the constitution says what it says and it doesn't say what it doesn't say. It is a fundamental right, but the drafters of the constitution failed to mention it in explicit enough terms to adequately protect people. In fact, the people that voted in favor of gay marriage must have agreed that the constitution didn't adequately protect these rights, because they heavily referenced amendments (AKA modifications) to the constitution in their decision.

The constitution isn't perfect. If it was, we wouldn't have needed amendments to give women the right to vote, or to make minorities count as whole people. We need amendments to make it better.

For all I know, Scalia may have had bigoted alterior motives for his vote. However, I'm simply evaluating his argument (which if you'll reread my statement I wasn't actually agreeing with).

The Constitution does not mention marriage at all (AFAICT). So why do you need an amendment to allow gay marriage? What are you amending, if it does not exist?

I didn't suggest an amendment to allow gay marriage, I suggested an amendment that would explicitly prohibit the state and federal governments from attempting to regulate any marriage between two consenting adults.

In an academic manner, you are right. Its silly that we have to do anything to keep any government from interfering with things that we consider to be fundamental rights.

I didn't suggest that the constitution mentions marriage. However, its failure to explicitly state it as a fundamental right is a large part of the reason gay people were oppressed for so long in our country. Historically, rights not outlined in the constitution fall under the authority of state governments.

Also note that the constitution and the bill of rights are more of a statement of rights we already have. The document isn't intended to actually grant the rights. No one can grant fundamental rights. However, having a constitution as a statement of rights can help protect them when others want to take them away.

Uh, aren't all our fundamental rights part of why the constitution was written? It's not like the founders where n00bs when they realized a Bill of Rights was needed. They still didn't even get it right by still allowing slavery. Seems like the lesson should be, get more rights into the constitution.

No, they are not. Read the pre-amble to the bill of rights. It makes it clear the rights are broad and pre-existing for the Bill of Rights and the Bill of Rights merely clarifies.

This is why the right to self defense cannot be restricted by any interpretation of the second amendment. Same with speech and the first amendment.

Those amendments are restrictions on government, not creators of rights.

Fair enough, so maybe some clarification needs to be added?

> Why should a fundamental right require a constitutional amendment?

Why do the Bill of Rights, the 13th, and the 19th amendments exist? They're all designed to protect fundamental rights. An amendment would afford non-traditional marriage the same protection.

The Ninth Amendment, my friend:

  “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

When the Supreme Court "creates" new rights, they are acting under the aegis of the Ninth Amendment, and simply recognizing a right that is retained by the people. For all fundamental rights to be explicitly enumerated in the Constitution is something that the Founders explicitly knew they could not do.

Right, which is why given there is no enumerated power clause giving them one the federal government has no power to regulate marriage.

The problem is, the states legalized gay marriage at the state level, and DOMA which is invalid under the 9th amendment and powers clause caused a problem.

They should have struck down DOMA and let the states have their choice, as they do under the 9th amendment.

The courts actually did both.

When Section 3 of DOMA (the portion prohibiting the Federal government from recognizing same sex marriages) was overturned, it was partially on a Tenth Amendment argument.

It was in overturning Section 2 of DOMA (the portion allowing States not to recognize same sex marriages performed in other States) that the Supreme Court recognized marriage rights as something which could not be restricted on the basis of the sex of the participants.

I am not certain you could construct an argument that would allow the Supreme Court to overturn Section 2 of DOMA without also declaring all State laws unconstitutional; once the Supreme Court recognized that right, the 14th Amendment applies.

And yet, the end of slavery and enactment of women's suffrage were both strengthened by amendments, rather than supreme court decisions (which is why I included those in my list). So I think that my question still stands. Why would an amendment be necessary to force a right that should've been held by the people already in one case, but not another?

SATSQ: A Constitutional amendment is necessary to establish a right when the Courts do not recognize that right.

An Amendment is also useful to avoid a right being lost in future rulings, or to raise the bar on what is considered a compelling reason to abridge that right. Remember, DOMA was overturned not just because the Courts recognized freedom to marry as a right, but because the Federal government was unable to offer a compelling reason why it was in the public interest to remove that right from same-sex couples.

Consequently, a Constitutional amendment may well have been necessary to end slavery, because even if the Courts were willing to recognize both slaves as citizens deserving of rights and "not being a slave" as an unenumerated right in 1865 (hint: they weren't), the Courts almost certainly would have been willing to hear arguments that slavery was in the public interest, even if it was an abridgement of the rights of slaves. They are certainly willing to allow de facto slavery of non-citizens and of prison inmates to continue.

In any case, demanding that we refuse to recognize a right until it is enumerated in the Constitution or its Amendments, when the Constitution itself both declares the existence of unenumerated rights and demands they be recognized is just fucking asinine.

Where do you get off calling my question stupid? Condescending asshole.

To be clear: I don't have a problem with your answer itself, but the tone in both of your replies to my honest questions hasn't been helpful. You need to work on your presentation, or you're going to turn more potentially interesting information into something of shit value.

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